Nominal Defendant v Bacon [2014] NSWCA 275

McColl JA Macfarlan JA Ward JA 21/08/2014

Corrugations formed by frequent traffic on unsealed roads are a part of daily life in rural Australia.

The agriculturally rich Liverpool Plains between Tamworth and Gunnedah is crisscrossed by such roads on which locals accommodate the corrugations – where safety permits – by driving in the centre on what is colloquially known as the “beaten track”.

In the late afternoon of an August 2008 Friday, Natalie Bacon was driving west from her parents’ home in Breeza in her Ford Fiesta, towards Gunnedah, along The Old Dip Road.

She quickly reached 80 kph in good conditions except for “a small amount of dust but nothing to be worried about.”

Positioning the Fiesta on the “beaten track”, she was in fact making up ground fast,  behind a prime mover motoring at 60 kph. As she gained on the unit, the dust cloud thickened.

When Natalie got so close that she could only see just over a car length in front, she “subconsciously, from force of habit” started to veer away from the centre of the road to the left.

Unbeknown to her, the prime mover ahead was slowing because its driver estimated he would pass a semitrailer seen coming from the opposite direction at 80 kph “at a very tight spot”.

The oncoming semi moved to its left and the two trucks passed each other with less than a metre between them.

Almost instantly and before either driver had any time to react, the semi collided with Natalie’s car.

She sustained serious injuries and because the semitrailer was unregistered and had no CTP insurance cover, she brought an injury compensation claim against the “Nominal Defendant”, a government body who acts as “insurer” for uninsured vehicles.

Her case was that because the two trucks had passed one another safely and she was already veering away from the centreline, the semi driven by Andrew Clift must have been in the course of regaining its position on the “beaten track” and moved left to right into the Fiesta’s path.

The New South Wales District Court agreed with that analysis but when awarding compensation, ruled that she too was negligent in that she had been travelling at an excessive speed given the poor visibility from the dust being thrown up by the preceeding vehicle.

The court ruled that negligence contributed to the extent of 50% and hence her damages assessed were cut by half.

The Nominal Defendant appealed arguing that Natalie herself had been the cause of the accident because most likely, her vehicle was partly to the right of the imaginary centreline at the time of the impact.

Not so said the appeal judges. Even if Natalie’s car were still straddling the midpoint of the road “the two vehicles would have passed without incident had Andrew’s truck remained on the far left hand side” until the dust subsided, rather than veering to the right without knowing what lurked in the dust cloud.

“It follows that in all probability had Andrew remained where he was not steered back onto the beaten track, the collision would not occurred. His negligence in doing so when did not have a clear view of any oncoming traffic was a necessary condition of the accident.”

The Appeal Court also upheld the apportionment of liability of 50% to each party.

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